Washington v. Goldsborough et al

Filing 76

ORDER: 73 Motion to Amend/Correct the Complaint and 74 Motion Requesting Relief from the Final Judgment are DENIED. Signed by Judge Nancy J. Rosenstengel on 9/26/2016. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BURL WASHINGTON,
Plaintiff,
vs.
DAVID GOLDSBOROUGH, STEVEN
HOFFMEIER, FRANK FESTER, JASON
JONES, and B. AUTERSON,
Defendants.

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Case No. 13-CV-613-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Burl Washington, an inmate in the Federal Bureau of Prisons, filed a pro
se lawsuit on July 30, 2012, pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1991),
alleging 15 claims (some with multiple parts) against 24 defendants (see Doc. 1).
Following a threshold review of the complaint pursuant to 28 U.S.C. § 1915A, a number
of Washington’s claims for retaliation, interference with his First Amendment right to
correspond with friends and family, deliberate indifference, and excessive force against
the above-named Defendants (Counts 8A-D, 11A, and 12A) were severed into this new
case (Doc. 1). In these counts, Washington claims that, while he was hospitalized at
Barnes Hospital for complications resulting from his glaucoma surgery, Defendants
denied him access to the bathroom, confiscated writings he intended to mail to a friend
along with his writing materials, “lost” his eye patch, turned down the air conditioner to
a very cold setting, struck him on the back of the head, wrote a false incident report, and

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punished Washington for an “unspecified” and unsubstantiated charge for which he
was not given proper notice.
On September 10, 2014, Defendants Auterson, Fester, and Jones moved for
summary judgment arguing that Washington failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e) (Doc. 33).
Defendants Goldsborough and Hoffmeier joined and adopted the motion for summary
judgment (Docs. 53 and 60). Plaintiff, through appointed counsel, timely filed responses to
each of the motions for summary judgment (Docs. 50, 55, and 64).

Following an evidentiary hearing, Magistrate Judge Wilkerson issued a Report
and Recommendation, which recommended granting the motions for summary
judgment (Doc. 66). Washington did not file any objections to the Report and
Recommendation. On August 3, 2015, the undersigned District Judge adopted the
Report and Recommendation, and Washington’s claims against all Defendants were
dismissed without prejudice for failure to exhaust his administrative remedies (Doc. 67).
More than four months after judgment was entered, Washington filed a motion to
amend or correct his complaint (Doc. 73) and a motion requesting relief from the final
judgment under Rule 60(b) of the Federal Rules of Civil Procedure (Doc. 74). Both
motions are currently before the Court.
DISCUSSION
Relief under Rule 60(b) “is an extraordinary remedy and is granted only in
exceptional circumstances.” Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc.,
570 F.3d 845, 848 (7th Cir. 2009). The decision whether to grant relief under Rule 60(b) is
left to the discretion of the district court, and its ruling will not be reversed absent an
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abuse of that discretion. Id. (“The district court has great latitude in making a Rule
60(b) decision because that decision ‘is discretion piled on discretion.’”) The Rule
permits a court to vacate a judgment, order, or proceeding based on one of six specific
grounds:
(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.
FED. R. CIV. P. 60(b).
Here, Washington invokes ground two by claiming that he is entitled to relief
based on “newly discovered evidence that could not be discovered earlier due to denial
of adequate assistance with reading and writing after [he] suffered significant and
sever[e] vision loss” (Doc. 74). Washington describes the progression of his vision loss
from March 2012 up through the present day (Doc. 73). As best the Court can tell,
Washington is claiming that the grievance process was rendered unavailable to him
because of his visual impairment and the lack of assistance with reading and writing.
In its Order granting Defendants’ motion for summary judgment, the Court
determined that Washington filed a number of grievances between March 2012 and June
2012, none of which were fully exhausted. The Court concluded that Washington “either
failed to file a grievance regarding claims in this lawsuit, failed to properly appeal or file
grievances related to his claims, or failed to wait until after the administrative process”

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(Doc. 66). Consequently, the Court granted Defendants’ motion for summary judgment
and dismissed the case without prejudice (Docs. 67, 68).
The Court would consider vacating the dismissal of this action if Washington
demonstrated he was unable to complete the grievance process because it was made
unavailable to him by virtue of the fact he was visually impaired and did not have any
assistance with reading and writing. In evaluating whether Washington has made this
showing, the Court is primarily concerned with the period of time from March 2012,
which is when Washington began filing grievances relevant to the claims in this case, to
July 30, 2012, which is when Washington filed his lawsuit, because this is the period of
time during which Washington could have theoretically completed the grievance
process.
While Washington claims that he “suffered significant vision loss” beginning in
March 2012 (Doc. 74, p. 2), the Court concludes that, whatever the extent of his vision
loss at that time, it did not hinder him from participating in the grievance process. To
begin with, Washington appears to indicate that assistance with reading and writing did
not become a necessity until August 2012, which is after he filed suit (Doc. 73, p. 9). 1
Additionally, from April to July 2012, Washington submitted some two dozen
In the motion, Plaintiff alleges the following:
Plaintiff suffered damage and injury to his eyes caused by the denial of medically
necessary medical equipment from March 22, 2012 to March 27, 2012. . . . From March 26,
2012 to August 2012, Plaintiff suffered significant vision loss. SEE: Clinical Encounter
August 10, 2012 (stating: “tinted glasses given for near power”). . . . [T]hese glasses were
inadequate and did nothing to assist with reading and writing. And the need for adequate
assistance with reading and writing became necessary.
(Doc. 73, p. 2; see also p. 20). Based on this, it appears that Plaintiff is claiming that he needed assistance
with reading and writing only after he received a pair of glasses on August 10, 2012, that were ineffective.
Nowhere in the motion does Plaintiff allege that assistance with reading and writing “became necessary"
at some point prior to August 10, 2012 (see Doc. 74). Therefore, the Court assumes that while assistance
with reading and writing may have been helpful prior to August 10, 2010, it was not necessary.
1

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grievances and appeals (Doc. 33-3). These submissions indicate that either Washington
had not completely lost his ability to read and write or he had access (and plenty of it) to
other inmates who were willing to read and write for him. Consequently, Washington
has failed to demonstrate that his visual impairment prevented him from completing the
grievance procedure with respect to any of the relevant, unexhausted grievances. 2
Accordingly, the Court has no reason to vacate the judgment and reopen this case.
CONCLUSION
The Motion to Amend/Correct the Complaint (Doc. 73) and the Motion
Requesting Relief from the Final Judgment (Doc. 74) filed by Plaintiff Burl Washington
are DENIED.
IT IS SO ORDERED.
DATED: September 26, 2016
s/Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

See Fry v. Al-Abduljalil, 164 F. App’x 788, 791 (10th Cir. 2006) (holding that legally blind prisoner could
not show administrative remedies were unavailable when he submitted at least two other grievances
during the relevant time period); Chavez v. Thorton, No. CIV.A. 05-CV-00607RE, 2008 WL 2020319, at *5 (D.
Colo. May 9, 2008) (“Plaintiff’s ability to fill out non-lawsuit related grievances (also known as ‘kites’)
during the relevant time period is inconsistent with his argument that he was physically unable to comply
with the grievance procedure.”) (parenthetical in original). See also Pavey v. Conley, 170 F. App’x 4, 9 (7th
Cir. 2006) (discussing that prison officials may have rendered grievance process unavailable when plaintiff
broke the arm he wrote with and he was confined to his cell without access to other inmates). But see Dale
v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (vacating grant of summary judgment for defendants on
failure-to-exhaust defense where inmate submitted evidence that prison officials failed to provide him
with required grievance forms).
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